· pdf filela belle discotheque in west berlin, germany on april 5, 1986. ... documents that...
TRANSCRIPT
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES
UNITED STATES DEPARTMENT OF JUSTICE WASHINGTON, DC 20579
In the Matter of the Claim of } } } }
5 U.S.C. §552(b )(6) } Claim No. LIB-I-003 } } Decision No. LIB-I-044 }
Against the Great Socialist People's } Libyan Arab Jamahiriya }
----------------------------}
Counsel for Claimant: Steven R. Perles, Esq. Perles Law Firm, PC
Oral Hearing held on December 16, 2011.
FINAL DECISION
This claim against the Great Socialist People's Libyan Arab Jamahiriya ('libya) is
based upon physical injuries said to have been sustained by 5 U.S.C. §552(b)(6) at the
La Belle Discotheque in West Berlin, Germany on April 5, 1986. By Proposed Decision
entered April 7, 2011, the Commission denied the claim on the ground that the claimant
had not met his burden of proving an injury sufficient to meet the Commissioris standard
for physical injury under the December 11, 2008 Letter from the Honorable John B.
Bellinger, III, Legal Adviser, Department of State, to the Honorable Mauricio 1.
Tamargo, Chairman, Foreign Claims Settlement Commission (December Referral). In
particular, the Commission cited the lack of medical documentation sufficient to verify
the cause of claimanfs alleged physical injuries, and, with regard to the medical
documents that were submitted, the fact that the relevant conclusions regarding claimanfs
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il1iuries derived solely from c1aimanfs own statements, rather than the physicians'
objective observations.
On May 3, 2011, the claimant filed a Notice of Objection, asserting various legal
and factual errors in the Commission's Proposed Decision and requesting an oral hearing.
The oral hearing was initially scheduled for July 28, 2011, but was postponed at
c1aimanfs request. On November 25,2011, the claimant submitted further documentary
evidence in support of his objection, including, inter alia: extensive medical records,
including c1aimanfs service records from the U.S. Department of Veterans Affairs (VA)
from the period between 1980 and 2011; various court documents, translated from
German to English, regarding the criminal prosecution of the La Belle bombers in
Germany; an affidavit from Gary Damon, one of the La Belle bombing survIvors,
attesting to having seen claimant at the scene of the incident; the report of Danny
Defenbaugh, a bomb scene forensics expert, describing the nature of the La Belle bomb
blast and its relationship to c1aimanfs alleged physical injuries; an affidavit from Cedric
Jay Woolfork, another La Belle bombing survivor, also attesting to c1aimanfs presence at
the scene of the incident; and two color photographs of claimant, taken in 2008 and 1994.
The hearing on the objection was held on December 16, 20 II.
The claimant testified in person during the hearing, responded to questions from
the Commission, and permitted examination of the scarring to his face and hands that he
alleges resulted from the injuries he suffered during the attack. In addition, c1aimanfs
counsel presented the testimony of four other individuals concerning, variously,
c1aimanfs presence at the scene of the incident, his alleged physical injuries, and the
procedures governing the handling of medical records within the U.S. military.
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DISCUSSION
1. Claimant's Presence at the Scene of the Incident
Claimant testified in detail during the hearing about his experience on the night of
the La Belle bombing and his alleged physical injuries. He stated that he joined the U.S.
Army in 1980 and was stationed in Fort Campbell, Kentucky at the time of the incident;
however, on the night of the bombing, he was on leave in Berlin trying to reconcile with
his then-wife. At the time, the two were separated. Claimant testified that they went to
the La Belle Discotheque in the evening to "relive some of the old times ... [,], and that at
a certain point he wanted to leave while she wanted to remain. Claimant testified that he
became angry, at which point he"walked upstairs, and [he 1 was outside:'
Claimant stated that, just before the explosion, he'\valked out the door .... went
to the right and stopped, and next thing I know it was just chaos:' He testified that, when
the explosion occurred, he was "knocked all over the placer,], and that the blast left him on
the ground outside the disco. Claimant further testified that, after he"came to;'he stood up
and "immediately went back downstairs because [he 1 was worried about [his wife]:,
As further evidence that he was present at the scene of the La Belle bombing,
claimant presented the testimony of Gary Damon, a survivor of the incident. In addition,
the Commission reviewed affidavits from Mr. Damon and Cedric Jay Woolfork, another
survivor of the bombing. Mr. Damon testified that he was inside the club's restroom
when the bomb exploded, and that after the explosion he went back into the club to assist
the injured. Mr. Damon stated that he carried one of the injured (Kenneth Ford, who later
died from his injuries) outside and attempted to administer first aid. He testified that it
was at this point that he saw claimant. Mr. Damon testified that claimant was "right
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outside there being attended to by a couple of German women, and next thing you know,
they're just whisked away in a cab ... :'
He stated that the two individuals"were holding [claimant] up with something over
his head:' In addition, he recalled "the women helping that one gentleman 'cause he was
not very good on his feet ... he was wobbly. They sat him down on a curb ... :' Mr.
Damon added that, at this point, the claimant "was only maybe four feet away sitting on
the curb:' He testified that he did not know if the claimant was bleeding because he was
busy assisting Mr. Ford. However, in his affidavit, Mr. Damon averred that he witnessed
the claimant on the sidewalk"bleeding from either his scalp or his face and he looked like
he was in shock:'
During the hearing, Mr. Damon was asked whether he had ever seen the claimant
before or after that night, and he responded, "No, I never met him:' However, it was noted
that in his affidavit, he stated that he "had seen [claimant] several times in the past, but we
were never friends although we may have said hello before:' Mr. Damon testified that he
did not know why he wrote that, and that, in fact, he "had never met him before until that
night:' In his affidavit, he further recalled that he ''never saw Clay after that night and do
not know what happened to him or if he recovered from his i~uries:' He testified that his
memory of the claimant was triggered by recent photographs that had been provided to
him. Mr. Damon was asked, given the error in his affidavit regarding whether he had
seen claimant before, he had possibly mixed claimant up with someone else. He
responded that "if I got confused, [it] would just be because they just look so similar just
because in the army everyone's got short hair and, you know, small build, stocky ... :'
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Mr. Damon also clarified that the photographs that he saw of claimant were relatively
recent, and were not taken around the time of the La Belle incident.
As noted above, the Commission has also reviewed the affidavit of Cedric Jay
Woolfork, another U.S. army service member who was inside the club at the time of the
bombing. In his affidavit, Mr. Woolfork states that, prior to the explosion, he was
approached by a German woman and invited to dance, at which point he noticed the
claimant. He states that he "did not know him closely but I knew he was a soldier and I
had seen him around on occasion~' He further states that"it may have been his wife I was
dancing with, unbeknownst to me[,J' and that claimant''was staring at us dance~' He notes
that"[o]ne of the biggest reasons why rm very confident that the person I saw that early
morning in LaBelle Disco was [claimant] is because of the distinct shape of his ears~' Mr.
Woolfork states that he did not see the claimant when the bomb exploded, but he believes
he "saw [claimant] and a woman who I am not sure I could recognize ... , but the woman
was helping a person who I believe was Clay get up as he appeared to me to be bleeding
and his clothes were either smoking or covered with dust but they were not on fire~' He
notes that he "never saw [claimant] in person after that night and do not know what has
become ofhim~'
It is clear from the foregoing testimony and affidavits that neither Mr. Damon nor
Mr. Woolfork was well-acquainted with claimant, and that neither individual was able to
identify him except through their recollection of certain physical features that they
recognized in recent photographs. Under these circumstances, there is sufficient reason
to question whether the person they saw was indeed the claimant. Nonetheless, given the
circumstances of the event, and the claimanfs own testimony alongside the key
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particulars testified to by Mr. Damon and attested to by Mr. Woolfork in his affidavit, the
Commission is prepared to accept, as an established fact, that the claimant was present at
the scene of the La Belle discotheque on the night of the attack in question.
II. Alleged Physical Injuries and Medical Evidence
With regard to his alleged injuries, claimant testified during the hearing that as he
re-entered the building after the explosion, he noticed that there was blood on his hand.
He soon found his wife, together with another person, and as the three exited the
building, his wife and the other person"held claimant up'; once they were outside the club,
they told him to sit down. Subsequently, claimant was placed into a vehicle-lx does not
recall what type of vehicle-md taken to a ''treatment facility;' although he does not recall
whether it was a hospital, only that it was "set up like a triage~' According to claimant, he
'\>,as totally disoriented['J'although he recalls that he was'bleeding ... across my left eye
and I had blood on my back~' He described the injuries to his back as 'abrasions~' In
addition, his "skin was hot, like I had been sunburned;' he suffered '1acerations on both
thumbs and on my elbow['J'and he"was covered in soot:'
Claimant further testified that, after he arrived at the "treatment facility;' medical
personnel 'bandaged me up and more or less sent me on my way~' He acknowledged that
he was not hospitalized and that he did not receive stitches for any of the lacerations he
claims to have sustained. He further acknowledged that when he returned to Fort
Campbell approximately two days after the incident, he did not seek follow-up treatment
for his alleged injuries. He stated that he changed his own bandages, and was back on
active duty three weeks later (he alleges he had three weeks remaining on his leave).
Claimant testified that he chose not to seek medical treatment because, at the time of the
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incident, he was on a "promotion list;' and he was concerned that if his injuries became
known, he would be removed from this list. He also testified that, "soon after the bomb
blast[,J' he began to experience headaches; however, he never sought any medical
treatment for those either, although he states that he did take over-the-counter medication
such as Tylenol and ibuprofen.
According to claimant, his physical injuries resulted in scars on both thumbs, as
well as a scar over his left eye, which he associates with the bleeding over that eye
described in his testimony. In addition, he alleges that he continues to experience
headaches "four of five times a month:' Asked during the hearing whether anything in
particular triggers these headaches, claimant responded "No .... It just happens:' He also
added that, in addition to his other injuries, he suffers from the following conditions
which he attributes to the La Belle bombing: "insomnia, back problems ... [and] difficulty
being around group[ s] of people:' However, asked during the hearing to clarify which
injuries formed the basis for his physical injury claim, claimant acknowledged that it was
the lacerations to his thumbs, the injury to his eye, and the injury to his back.
Neither Mr. Damon, who submitted an affidavit and appeared on claimanfs behalf
at the hearing, nor Mr. Woolfork, who submitted only an affidavit (but did not testify in
person), was able to describe any physical injuries suffered by claimant with sufficient
specificity to enable the Commission to conclude that any such injuries rise to the level of
significant, non-superficial physical injuries. Mr. Damon alleges only that he saw the
claimant being held up and bleeding from his scalp or face; in his affidavit, he appeared
to say even less: that he did not know whether claimant was bleeding at all. For his part,
Mr. Woolfork indicates only that claimant was being assisted after the blast and that he
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'appeared to me to be bleeding:' These statements, and the testimony from Mr. Damon
during the hearing, do not assist the Commission in shedding light on the nature and
severity of claimanfs alleged physical injuries.
In addition, as noted above, claimant has submitted extensive V A medical records
covering the period of his military service, from 1980 (the year of his enlistment in the
Army) to his retirement from the military in 2000. Despite the wealth of information
contained in these records, however, there is little evidence that claimant suffered any
significant physical injuries as a result of the La Belle bombing. Indeed, the incident is
not referenced anywhere in the nearly 130 pages of V A medical records that have been
submitted. Moreover, many of these records contain information that suggests that
claimant had not suffered significant physical injuries in 1985. For instance, claimanfs
Chronological Record of Medical Care contains no entries between the date of the
incident and November 4, 1986, when claimant appeared to undergo only a height and
weight check. Entries for November 15 and December 5, 1986 similarly contain no
suggestion of a recent physical injury (the latter visit appeared to pertain to a "cold, fever
& chills). Notably, a Consultation Report from 1999-reveral years after the incident-
includes the notation "Urremarkabltl' under "Past Medical History;' and "None' under "Past
Surgical History:']
Records from claimanfs retirement physical in late February and March 2000 also
raise questions concerning whether he suffered any significant physical injuries during
the La Belle bombing. In a March 1, 2000 Report of Medical Assessment, claimant
checked '\16' next to the questions asking whether he had suffered any injury while on
1 The consultation appeared solely to be an evaluation for gallstone surgery, as claimant had recently experienced symptoms of cholelithiasis, a condition characterized by the "[p lresence of concretions in the gallbladder or bile ducts." Stedman's Medical Dictionary 366 (28th ed. 2006).
LIB-I-003
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active duty for which he had not sought medical care, or whether he had any conditions
which currently limited his ability to work in his primary specialty. Similarly, in his
February 28, 2000 Report of Medical History, next to the questions asking whether he
had ''had, or . . . been advised to have, any operation[,J' or whether he had "ever been a
patient in any type of hospital[,J' claimant indicated only that he had had his gall bladder
removed in 1998.
In short, the medical records submitted do not support the claim of injury here.
Indeed, the Commission's examination of these records suggests that these records
significantly undermine claimanfs assertion of physical injury at the La Belle
discotheque. As noted, claimant asserts in his submissions, and confirmed during the
hearing, that his major claim of injury was a cut to his left eyebrow area which left him
with scarring. Claimant submitted color photographs of his left eye in support of the
objection and permitted the Commission to examine the scar during the hearing.
However, the report of a medical exam conducted in April 1980 indicates that claimant
already had a scar in that location six years before the terrorist incident. A similar report
from November 1985 confirms this, adding that it measured one centimeter. When asked
about these records, claimant asserted that before the bombing, the scar 'barely covered
[his 1 eyebrow~' He testified that the scar resulting from the bomb blast was in the "same
location, ifs just 10nger[,J' and that prior to the bombing, the scar"did not extend above
[his 1 eyebrow~'
The scars claimant testified he had on his thumbs are likewise not referenced in
any of the medical records, including the report of his February 2000 retirement physical,
which specifically asks about scars. The only injury to claimanfs thumbs referenced in
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the medical records is a sprain to claimanfs right thumb in February 1985. There is no
indication of lacerations. During the oral hearing, the Commission examined claimanfs
thumbs to see whether any scars were visible; however, none could be seen.
As noted above, claimant also alleges that he suffered a back injury in the
bombing which has left lingering effects to the present day. However, as with the other
alleged injuries, there is virtually no evidence in the medical records to substantiate this
allegation. For instance, in claimanfs February 28, 2000 medical history report, next to
the item labeled ''Recurrent back pain or any back injury;' claimant checked "no:' The
accompanying Report of Medical Examination makes no reference to back injuries, and
next to the item "Spine, Other Musculoskeletal;' the examining physical marked "Normal:'
The only suggestion in the medical records that claimant ever suffered a back injury
appears in his Chronological Record of Medical Care. In an entry for October 18, 1990,
it is noted that claimant 'was carrying his rucksacR' when he "tripped and fell[,J' and that
when he fell, "his body twisted:' According to the entry, this was accompanied by pain in
the claimanfs right-side rib cage; doctors identified claimanfs injury as "rXlssible bruised
ribs:' No further records of treatment for this injury have been submitted. In addition,
although the results of recent medical examinations note that claimant has a'1arge scar in
his mid thoracic region;' which can be seen in color photographs submitted with this
claim, it is not clear that this was the result of the La Belle bombing, and the scar is not
mentioned or discussed in c1aimanfs military medical record.
With regard to the absence of documented injuries or treatment in the months and
years following the incident, and his decision not to seek medical treatment when he
returned to the United States, claimant testified, as noted above, that he was concerned
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about the impact such injuries would have on his promotion potential. However, he also
testified that some of his injuries, and particularly his alleged hearing loss and head
injury, "[wererit] as dramatic as [they are] now:' With regard to claimanfs "constant
tinnitus;' which he alleged in his initial submission, it was noted during the hearing that in
1992, he underwent a hearing screening; a notation from this exam indicates "Hearing
Within Normal Limits:' Claimant acknowledged that, at that time, his hearing was
normal.
During the oral hearing, claimanfs counsel also presented the testimony of John C.
Anigbogu, M.D., a board-certified specialist in physical medicine and rehabilitation, who
conducted a physical examination of claimant on June 9, 2011. A copy of Dr. Anigbogu's
report was provided with claimanfs objection materials. Dr. Anigbogu testified that
'[claimanfs] complaints are consistent with people that have mild traumatic brain injury
[TBI):' He added that it was not unusual that TBI would not appear in claimanfs medical
records because such injuries are often not diagnosed at the time of injury, and the fact
that many people with mild TBI do not seek treatment. In his report, Dr. Anigbogu
attributed the diagnosis of TBI to claimanfs alleged injuries in the 1986 bombing. Dr.
Anigobogu also took note of scars on claimanfs back,2 the scar over his left eye, and his
complaints of "chronic headaches' and tinnitus, all of which Dr. Anigbogu concluded were
also the result of the La Belle bombing.
2 Dr. Anigbogu was also asked about "[ s ]cattered back granulomas" identified during his examination and referenced in his report. He testified that he often sees these in patients who have suffered an injury, often glass injuries. He also distinguished these from the scar on claimant's back. Again, however, Dr. Anigbogu only attributed this to the La Belle incident through claimant's own statements. In addition, it should be noted that, in the February 28, 2000 Report of Medical History, claimant checked the "yes" box next to "Skin diseases" in his Past/Current Medical History. Given this fact, and the absence of evidence that would tie these skin lesions to the 1986 incident, there is insufficient evidence for the Commission to conclude that these are the result of any physical injury sustained during the bombing.
LIB-I-003
Despite Dr. Anigbogu's detailed findings, it is unclear what objective data he
relied on to reach his conclusions and determine that claimanfs alleged injuries were the
result of the La Belle bombing. Asked during the hearing whether he had conducted any
radiological examinations or other testing, he acknowledged that he had not. Moreover,
he had not reviewed any of claimanfs medical records before the visit, and the June 9,
2011 visit was the only appointment he had with claimant. Asked whether TBI could be
diagnosed in a single office visit, Dr. Anigbogu acknowledged that it could not. Indeed,
asked whether he had specifically diagnosed TBI in claimant, Dr. Anigbogu indicated
that he had not, only that his symptoms were"consistent witWTBI. Further, Dr. Anigbogu
acknowledged that his entire report was based on statements that claimant had made to
him regarding his alleged physical injuries during the La Belle incident. Under these
circumstances, Dr. Anigbogu's report and testimony are of negligible usefulness to the
Commission, as they fail to establish a causal link between claimanfs alleged physical
injuries and the La Belle bombing, or in the case of mild TBI, that claimant suffers from
a physical injury at all.3
Claimanfs counsel also presented the testimony of Colonel Paul Schwarz, a retired ,
U.S. Army officer, concerning the handling of military medical records, and the likely
fate of any such records pertaining to claimanfs treatment immediately following the La
3 Claimant also submitted with his objection materials a letter from Leslie Schaffer, M.D., regarding an "initial neurosurgical evaluation" conducted on June 8, 20 II. Dr. Schaffer reached many of the same conclusions as Dr. Anigbogu concerning the scars on claimant's back and above his left eye, as well as traumatic brain injury. However, as with Dr. Anigbogu's evaluation, Dr. Schaffer'does not appear to have conducted any radiological testing to verifY the alleged TBl, and her account of what happened to claimant similarly appears to be drawn from claimant's own statements of the injuries he suffered. As such, Dr. Shaffer'S report suffers from the same defects as those in Dr. Anigbogu's evaluation, and is, therefore, of limited use to the Commission in verifYing claimant's injuries and establishing a causal nexus with the La Belle bombing.
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Belle incident. This testimony was entirely hypothetical and did not assist the
Commission in its determination of this case.
In an affidavit submitted with the objection to the Proposed Decision, Col.
Schwarz also described some of the facts surrounding claimanfs involvement in the La
Belle incident, including that claimant "took his wife, who was more seriously injured, to
a military treatment facility where his social security number was recorded by the CID
along with a notation of her injuries. As his injuries appeared superficial he was treated
and released ... ~' As to the source of this information, however, Col. Schwarz stated
during the hearing that'thafs what [he 1 had been told~' He also testified that, having
interviewed dozens of servicemen involved in the bombing, he believed that claimant
had, in fact, been injured in the La Belle bombing; however, the primary reason for this
belief was that what the claimant had told him was "consistent with the other stories that
[he 1 had heard . . . ~' It was apparent, then, that all of what Col. Schwarz understood
concerning claimanfs injuries and experience was derived either from claimanfs own
statements, or those of other service members, rather than from his own first-hand
knowledge. For this reason, the Commission is unable to accept this testimony as
evidence that claimant was injured during the attack.
Finally, claimanfs counsel also presented the testimony, together with a
November 20 II affidavit, of Danny Defenbaugh, a bomb scene forensics expert,
regarding the nature of the La Belle Discotheque explosion and its relation to claimanfs
alleged physical injuries. In his affidavit, Mr. Defenbaugh stated that, based on his
'tmalysis of crime scene photographs . . . of the bar after the explosion of the lED and
statements from the convicted terrorists who aided in the construction ... of the lED as
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described in the court record, [he 1 was able to form an opinion as to the nature of the
explosion and what would have been the normal result ... :' Mr. Defenbaugh testified
that these types of bombs have a ''very large shocking effect[,J' and that given the bomb
type and his analysis of the damage he saw in the photographs, glass would be expected
to shatter, and it would not be unusual for bystanders' ears to rupture "for probably up to
200 feet ... which would bring it out onto the street ... :' He further testified that, based
on his review of the documents provided and his analysis of the explosion, the injuries
alleged by the c1aimantnamely, the "sunburning effect' on c1aimanfs skin, the smell of
smoke from his hair, the bleeding cut over his eye, the other small cuts, and a temporary
loss of hearing-are consistent with what he would expect from the type of bomb used.
Mr. Defenbaugh was asked during the hearing whether he knew exactly where the
claimant was standing during the bombing. In response, he acknowledged that he did not
know exactly, only that he was outside based on witness statements and c1aimanfs own
assertions. He testified that his determination of where claimant was standing was drawn
from c1aimanfs description of his injuries, and the statements of the two witnesses who
claimed to have seen him there, and stated that it would be "near one of those apertures
that would allow the escaped gas and the thermal effect:' According to Mr. Defenbaugh,
claimant was "on the outside, probably near the curb area:'
Mr. Defenbaugh's characterization of the blast and its likely impact on bystanders
is no doubt accurate. Indeed, other claimants who have established in this program that
they were injured in the La Belle bombing have described such injuries. However,the
task before the Commission is to determine whether claimant himself suffered the
particular injuries alleged. As noted above, Mr. Defenbaugh acknowledged that his
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detennination of where claimant had been positioned during the explosion was derived
largely from claimanfs description of his injuries. As discussed in the preceding section,
however, claimant has failed to produce medical documentation sufficient to establish
that he suffered any of the physical injuries alleged. To establish claimanfs physical
injuries by relying on where he was said to be standing, therefore, represents a fonn of
circular reasoning that sheds little light on this claim. For this reason, Mr. Defenbaugh's
testimony and affidavit do little to support claimanfsa1legations of physical injury.
As is evident from the foregoing discussion, claimant has provided no credible
evidence that he suffered significant, non-superficial physical injuries as a result of the La
Belle Discotheque bombing. The testimony and documentation concerning his scars and
continuing physical ailments do not corroborate claimanfs asserted injuries, and, as
discussed above, contradict his claim. Claimanfs assertion that the scar above his left eye
was caused by the blast, even though he had a documented scar in exactly the same place
at least six years prior to the incident is difficult to credit. Moreover, claimanfs
explanation that he chose not to seek treatment for fear of endangering his promotion
potential does not account for the fact that there is still no evidence of his alleged
physical injuries even after his retirement from the military in 2000, when his fears would
have ceased to be an issue.
As to claimanfs asserted TBI, chronic headaches, hearing loss and/or tinnitus, and
back injury, there is simply no evidence either that he suffers from these conditions, or
that they are in any way connected to the La Belle bombing. There is likewise no
evidence connecting the scars on his back to the La Belle bombing. The same is true of
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the scars alleged to be on c1aimanfs thumbs, although, as noted above, these were not
even visible during the hearing.
In light of the complete absence of medical documentation evidencing any
physical injuries resulting from the La Belle bombing, the inconsistencies between many
of claimanfs assertions and the records presented, and the fact that he apparently never
sought or received medical treatment for any of his alleged injuries, the Commission
cannot find that claimant has submitted medical documentation sufficient to establish that
he suffered any physical injuries as a result of the La Belle incident, or that he sought
medical treatment within a reasonable time, as required by the Commission's standard for
compensability.
CONCLUSION
As discussed in detail above, claimant has presented virtually no evidence that he
suffered any physical injuries as a result of the La Belle Discotheque bombing. Despite
the wealth of medical documentation provided, including records from the years just
before and after the incident, there is no mention of the La Belle bombing, and none of
claimanfs asserted physical ailments has been causally linked to a bomb explosion, with
the exception of statements made in medical evaluations completed after the filing of his
claim. Moreover, neither of the witnesses to the attack is able to describe c1aimanfs
injuries with any specificity, and their identification of claimant, given their extremely
limited (or non-existent) interactions with him, is questionable at best. In addition,
although Mr. Defenbaugh's description of the explosion provided useful insight into the
types of injuries that could have been expected from the blast, he had no first-hand
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knowledge of claimanfs injuries and could only guess at what they were based on
claimanfs own statements.
Therefore, for the reasons discussed above, and based on the evidence and
information submitted in this claim, the Commission again concludes that the claimant
has not met his burden of proving that he has satisfied the Commissions standard for
physical injury.4 Accordingly, the denial set forth in the Proposed Decision in this claim
must be and is hereby affirmed. This constitutes the Commissions final determination in
this claim.
Dated at Washington, DC, September /If ,2012 and entered as the Final Decision of the Commission.
4 Section S09.5(b) of the Commission's regulations provides:
The claimant will have the burden of proof in submitting evidence and information sufficient to establish the elements necessary for a determination of the validity and amount of his or her claim.
45 C.F.R. § 509.5(b) (2011).
LIB-I-003
FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES
UNITED STATES DEPARTMENT OF JUSTICE WASHINGTON, DC 20579
In the Matter of the Claim of } } } } } } } } } }
-}
5 U.S.C. §552(b)(6) Claim No. LIB-I-003
Decision No. LIB-I-044
Against the Great Socialist People's Libyan Arab Jamahiriya
-----------------------------
Counsel for Claimant: Steven R. Perles, Esq. Perles Law Firm, PC
PROPOSED DECISION
This claim against the Great Socialist People's Libyan Arab Jamahiriya ("Libya")
is based upon physical injuries said to have been sustained by 5 u.s.c. §552(b)(6) at the
La Belle Discotheque in West Berlin, Germany on AprilS, 1986.
Under subsection 4(a) of Title I of the International Claims Settlement Act of
1949 ("ICSA"), as amended, the Commission has jurisdiction to
receive, examine, adjudicate, and render a final decision with respect to any claim of ... any national of the United States ... included in a category of claims against a foreign government which is referred to the Commission by the Secretary of State.
22 U.S.C. § 1623(a)(1)(C) (2006).
On December 11, 2008, pursuant to a delegation of authority from the Secretary
of State, the State Department's Legal Adviser referred to the Commission for
adjudication a category of claims of U.S. nationals against Libya. Letter from the
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Honorable John B. Bellinger, III, Legal Adviser, Department of State, to the Honorable
Mauricio J Tamargo, Chairman, Foreign Claims Settlement Commission ("December
Referral Letter"). The category of claims referred consists of
claims of u.s. nationals for physical injury, provided that (1) the claim meets the standard for physical injury adopted by the Commission; (2) the claim is set forth as a claim for injury other than emotional distress alone by a named party in the Pending Litigation; and (3) the Pending Litigation against Libya and its agencies or instrumentalities; officials, employees, and agents of Libya or Libya's agencies or instrumentalities; and any Libyan national (including natural and juridical persons) has been dismissed before the claim is submitted to the Commission.
Id. at ,-r 3. Attachment 1 to the December Referral Letter lists the suits comprising the
Pending Litigation.
The December Referral Letter followed a number of official actions that were
taken with respect to the settlement of claims between the United States and Libya.
Specifically, on August 14, 2008, the United States and Libya concluded the Claims
Settlement Agreement Between the United States of America and the Great Socialist
People's Libyan Arab Jamahiriya ("Claims Settlement Agreement"), 2008 U.S.T. Lexis
72, entered into force Aug. 14, 2008. On October 31, 2008, the Secretary of State
certified, pursuant to the Libyan Claims Resolution Act ("LCRA"), Pub. L. No. 110-301,
122 Stat. 2999 (2008), that the United States Government had received funds sufficient to
ensure "fair compensation of claims of nationals of the United States for . . . physical
injury in cases pending on the date of enactment of this Act against Libya .... " On the
same day, the President issued Executive Order No. 13,477, 73 Fed. Reg. 65,965 (Oct.
31, 2008), which, inter alia, espoused the claims of U.S. nationals coming within the
terms of the Claims Settlement Agreement, barred U.S. nationals from asserting or
maintaining such claims, terminated any pending suit within the terms of the Claims
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Settlement Agreement, and directed the Secretary of State to establish procedures
governing claims by u.S. nationals falling within the terms of the Claims Settlement
Agreement.
On March 23, 2009, the Commission published notice in the Federal Register
announcing the commencement of the Libya Claims Program pursuant to the ICSA and
the December Referral Letter. Notice of Commencement of Claims Adjudication
Program, 74 Fed. Reg. 12,148 (2009).
BASIS OF THE PRESENT CLAIM
On May 13, 2009, the Commission received from claimant a completed Statement
of Claim and accompanying exhibits supporting the claim, including evidence of:
claimant's U.S. nationality; his inclusion as a named party in the complaint filed in Clay
v. Socialist People 's Libyan Arab Jamahiriya, 06-cv-707 (D.D.C.), part of the Pending
Litigation referred to in Attachment 1 of the December Referral Letter, in which the
claimant set forth a claim for injury other than emotional distress alone; the dismissal of
the Clay case; and the claimant's alleged physical injuries.
· Th 1
5 u.s.c. e c mmant,
§552(b)(6) , states that he was standing outside the La
Belle Discotheque in West Berlin, Germany on April 5, 1986, when a bomb exploded
inside the club, throwing him against a wall and knocking him unconscious. When he
regained consciousness, he went back into the building and found his then-wife. After
helping her and another person make their way out of the building, they went to a
hospital clinic together. Claimant purportedly suffered first-degree bums to his face,
temporary hearing loss, and numerous cuts and bruises, and he avers that while he was at
the hospital he received treatment for small cuts to his face before being released. He
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states that he was never hospitalized and did not seek further contemporaneous treatment
for his alleged physical injuries.
The claimant has provided evidence of his United States nationality, both on the
date of the incident and at the time of the Settlement Agreement. Additionally, claimant
has provided several recent medical reports; sworn statements in which he describes the
incident and his alleged injuries; photographs of the La Belle Discotheque following the
bombing; an affidavit from a retired lieutenant colonel in the U.S. army describing his
understanding of the incident (although he was not personally present at the scene) and
the procedures that likely would have been followed by Army personnel concerning
claimant's medical treatment and follow-up; a CID casualty list, dated April 10, 1986,
which includes only the name of claimant's then-wife; and other documents in support of
his claim.
DISCUSSION
Jurisdiction
The Commission must first consider whether this claim falls within the category
of claims referred to it by the Department of State. Under subsection 4(a) of the ICSA,
the Commission's jurisdiction here is limited to the category of claims defined under the
December Referral Letter; namely, claims of individuals who: (1) are U.S. nationals; (2)
are named parties in a Pending Litigation case against Libya which has been dismissed;
and (3) set forth a claim in the Pending Litigation for injury other than emotional distress
alone. December Referral Letter, supra,-r,-r 2-3.
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Nationality Nationality
In In the the Claim Claim of of 5 U.S.C. §552(b)(6) , , Claim Claim No. No. LIB-I-001, LIB-I-OOl, Decision Decision No. No. LIB-ILIB-I-
001 001 (2009), (2009), the the Commission Commission held, held, consistent consistent with with its its past past jurisprudence jurisprudence and and generally generally
accepted accepted principles principles of of international international law, law, that that in in order order for for the the nationality nationality requirement requirement to to
have have been been met, met, the the claimant claimant must must have have been been a a national national of of the the United United States, States, as as that that term term
is is defined defined in in the the Commission's Commission's authorizing authorizing statute, statute, continuously continuously from from the the date date the the claim claim
arose arose until until the the date date of of the the Claims Claims Settlement Settlement Agreement. Agreement. To To meet meet this this requirement, requirement, the the
claimant claimant has has provided, provided, inter inter alia, alia, a a copy copy of of his his birth birth certificate certificate and and a a copy copy of of his his current current
voter voter registration registration card. card. Based Based on on this this evidence, evidence, the the Commission Commission determines determines that that this this
claim claim was was held held by by a a U.S. U.S. national national at at the the time time of of the the injury injury on on which which the the claim claim is is based, based,
and and that that it it has has been been so so held held from from that that point point until until the the effective effective date date of of the the Claims Claims
Settlement Settlement Agreement. Agreement.
Pending Pending Litigation Litigation and and its its Dismissal Dismissal
To To fall fall within within the the category category of of claims claims referred referred to to the the Commission, Commission, the the claimant claimant
must must also also be be a a named named party party in in the the Pending Pending Litigation Litigation listed listed in in Attachment Attachment 1 1 to to the the
December December Referral Referral Letter Letter and and must must provide provide evidence evidence that that the the Pending Pending Litigation Litigation against against
Libya Libya has has been been dismissed. dismissed. December December Referral Referral Letter, Letter, supra, supra, ~ ~ 3. 3. The The claimant claimant has has
provided provided a a copy copy of of the the complaint complaint in in Case Case No. No. 06-cv-707, 06-cv-707, filed filed in in the the United United States States
District District Court Court for for the the District District of of Columbia, Columbia, which which names names him him as as a a party. party. Additionally, Additionally,
the the claimant claimant has has provided provided a a copy copy of of an an Order Order dated dated May May 5, 5, 2009, 2009, as as evidence evidence of of the the
dismissal dismissal of of this this Pending Pending Litigation. Litigation. Based Based on on this this evidence, evidence, the the Commission Commission finds finds that that
the the claimant claimant was was a a named named party party in in the the Pending Pending Litigation Litigation and and that that the the Pending Pending Litigation Litigation
has has been been properly properly dismissed. dismissed.
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Claim for Injury Other than Emotional Distress
The December Referral Letter also requires that the claimant must have set forth a
claim for injury other than emotional distress alone in the Pending Litigation. December
Referral Letter, supra ~ 3. The Commission' s records reflect the claimant's assertion in
the complaint in the Pending Litigation that he was injured in the La Belle Discotheque
bombing. In particular, the Commission notes that the claimant states causes of action
for, inter alia, assault and battery under Count I of the complaint. Based on this evidence,
the Commission finds that the claimant has satisfied this element of his claim.
In summary, therefore, the Commission concludes, on the basis of the foregoing,
that this claim is within the Commission's jurisdiction pursuant to the December Referral
Letter and is entitled to adjudication on the merits.
Merits
Standardfor Physical Injury
As stated in the December Referral Letter, to qualify for compensation, a claimant
asserting a claim for physical injury must meet the standard for physical injury adopted
by the Commission for purposes of this referral. In order to develop the appropriate
standard for compensability, the Commission considered both its own jurisprudence and
pertinent sources in international and domestic law. The Commission concluded in the
· .rCl5 u.s.c . azm §552(b)(6)
OJ , supra, at 8-9, that in order for a claim for physical injury
to be considered compensable, a claimant:
(1) must have suffered a discernible physical Injury, more significant than a
superficial injury, as a result of an incident related to the Pending Litigation; and
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(2) must have received medical treatment for the physical Injury within a
reasonable time; and
(3) must verify the injury by medical records.
Physical Injury
According to his Statement of Claim and accompanying documents, claimant was
standing outside the La Belle Discotheque when an explosion from inside the club "lifted
[him] off [his] feet" and threw him "back against a wall[,]" rendering him
unconsciousness. Claimant states that when he awoke, his hair was singed, his face felt
sunburnt, and he had difficulty hearing. He further states that when he stood up to go and
assist his then-wife, who was still in the club, his back and shoulders hurt and he had
trouble using his arms. He further states that, after locating his wife, he took her to a
military clinic, where he was treated for small cuts to his face and released. Claimant
avers that he suffered frequent headaches and back and shoulder pain for several weeks
after the attack. He claims that since the incident he has suffered from social isolation and
depression which persists to this day.
According to the documentation submitted with this claim, claimant never sought
follow-up treatment and was not prescribed any medication for the physical injuries he
claims to have suffered. Indeed, the earliest medical record provided is the written report
of two psychological evaluations conducted on claimant by Kenneth M. Wilson, Psy.D in
2006 and 2008, some twenty years later, which includes no evidence of physical injury
stemming from the incident.
Claimant has submitted the results of a medical evaluation conducted at the Mayo
Clinic in Jacksonville, Florida in February 2010; however, according to the records from
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this visit, claimant presented himself with "no records whatsoever for review." The
examining physicians noted that claimant had arrived with a handwritten note describing
his symptoms, and that, although he provided a verbal description of the incident and his
medical history, "[h]e was a fair historian at best." Although claimant complained of
continuing chronic tinnitus, the audiology report notes that his "[h]istory is remarkable
for military and occupational noise exposure." An otoscopy revealed "impacted
cerumen," and upon removal of some of this, claimant indicated that the alleged tinnitus
had lessened.
According to a forensic reconstruction report written by Susan B. Meek, M.D.,
J.D., in connection with claimant's visit to the Mayo Clinic in 2010, claimant had a scar
running downward from the middle of his back; however, no evidence beyond claimant's
own statements appears to have been provided to verify the origin of this injury. Indeed,
many of the conclusions reached in this report appear to be derived from claimant's self-
described medical history as part of Dr. Wilson's psychological evaluation and claimant's
own explanations of his injuries and symptoms. Moreover, much of the report is of
negligible assistance to the Commission insofar as it consists of references to possible
and/or likely injuries that would be suffered by a hypothetical individual involved in
blasts comparable to the La Belle Discotheque explosion. Dr. Meek does refer to an X-
ray apparently revealing various abnormalities in claimant's spine that could explain
claimant's lower back pain and arthritis; here again, however, no evidence, apart from
claimant's own statements, has been presented to verify the cause of these conditions.*
* While not essential to its decision given this conclusion on the injury question, the Commission also notes that, apart from the question of physical injuries, claimant likewise has not provided sufficient evidence to prove his presence at the scene of the incident. A contemporaneously-produced cm casualty list does list the name of claimant's then-wife; however, claimant's name does not appear on this document, although it
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It is important to recall that in these proceedings, the burden of submitting
sufficient evidence lies with the claimant. Section 509.5(b) of the Commission's
regulations provides:
The claimant will have the burden of proof in submitting evidence and information sufficient to establish the elements necessary for a determination ofthe validity and amount of his or her claim.
45 C.F.R. § 509.5(b) (2010).
The burden in these proceedings is not onerous. Nonetheless, in this case, based
on the entirety of the evidence presented, the Commission finds that the claimant has not
met the burden of proof in that he has failed to provide evidence sufficient to establish
that he "suffered a discernible physical injury, more significant than a superficial injury";
that he "received medical treatment for the physical injury within a reasonable time"; and
that the injury be verified by medical records, as required under the Commission's
physical injury standard.
In light of the foregoing, the Commission is constrained to conclude that the
. I
5 u.s.c. §552(b)(6) calmant, , does not qualify for compensation under the December
Referral Letter. Accordingly, his claim based on physical injuries suffered as a result of
the La Belle Discotheque bombing must be and is hereby denied.
is his social security number that appears next to his wife's name. He explains this discrepancy by pointing out that, amid the confusion surrounding the incident, his wife most likely used her dependent ID card to identify both of them. While this explanation is plausible, claimant cannot be said to have provided sufficient evidence of his involvement in the incident. Evidence such as contemporaneous military reports, newspaper clippings, or affidavits from third parties with first-hand knowledge of claimant's presence at the scene of the bombing would have been highly supportive of his claim.
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The Commission finds it unnecessary to make determinations with respect to
other aspects of this claim.
Dated at Washington, DC, and Entered as the Proposed Decision Of the Commission.
APR 0 7 2011
NOTICE: Pursuant to the Regulations of the Commission, any objections must be filed within 15 days after service or receipt of notice of this Proposed Decision. Absent objection, this decision will be entered as the Final Decision of the Commission upon the expiration of 30 days after such service or receipt of notice, unless the Commission otherwise orders. FCSC Regulations, 45 C.F.R. § 509.5 (e), (g) (2010).
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